Cannabis Act Revisions in Ontario

October 12, 2018

Cannabis Act, S.C. 2018, c.16Cannabis Control Act, 2017Bill 36

The legalization of recreational marijuana is fast approaching. As it nears, the Ontario government is adjusting legislation to control how, where and by whom marijuana will be sold. Last week the government introduced Bill 36 which, with other marihuana legislation, makes substantial changes to the previous Cannabis Act:

The Bill revised prohibitions respecting the consumption of marijuana in a “public place.”

It changed the name of the Cannabis Act, 2017 to Cannabis Control Act, 2017

Enacted the Cannabis Licence Act, 2018. This establishes a licensing scheme for private cannabis retail stores and empowers the Alcohol and Gaming Commission of Ontario including to administer the licensing of private retailed stores.

Prevents the Ontario Cannabis Retail Corporation from operating retail stores. But it gives them exclusive jurisdiction to sell cannabis in Ontario online. As well as the exclusive right to sell cannabis in Ontario to licenced private retail stores; and

The Smoke-Free Ontario Act, 2017 and the Highway Traffic Act were also amended. The amendments treat the smoking of cannabis similarly to the regulation of tobacco, vapour products and medical marihuana.

The Prohibitions & Restrictions under the Cannabis Control Act, 2017

The Cannabis Control Act, 2017 still prohibits, without the authorizing licences, the sale, distribution, purchase, possession, cultivation, propagation, and harvesting of cannabis that was enacted by the Cannabis Act, 2017.

What has changed is:

Authorized Cannabis Vendor (section 2)

The government is now allowing private vendors. So the Cannabis Control Act, 2017 has redefined what an authorized cannabis vendor is in Ontario to include people that hold licences. The Ontario Cannabis Retail Corporation is now the exclusive supplier for all licenced vendors in Ontario.

False Representation as Authorized Cannabis Retailer

Under section 8.1 of the Cannabis Control Act, 2017, it makes it unlawful for any person to represent themselves as licenced/authorized cannabis retailer without being properly licenced.

Only Purchase from Ontario Cannabis Retail Corporation

Section 9(2) of the Cannabis Control Act, 2017, prohibits the purchase of cannabis from any other source. Whether online or in person, other than in person at a “cannabis retail store” or from the Ontario Cannabis Retail Corporation.

Public Consumption

In the revised act there will be no restriction on the public consumption of cannabis or at a workplace, a vehicle or boat or any place previously described. Now, the consumption of marihuana will be regulated by the Smoke Free Ontario Act, 2017. Smoking cannabis will be treated in a similar way to the regulation of tobacco, vapour products and medical marihuana.

Locked or Out of Sight While in A Motor Vehicle

Previously the government introduced legislation that would prohibit driving or having in your care or control a vehicle or boat, whether in motion or not, while cannabis was inside. Unless it was packaged out of sight or locked in the trunk or and not readily available to any person.

This will now be relaxed to being in its original, not open packaging.

Police Powers to Close Properties (section 13)

Bill 36 slightly expands police authority under section 18(1) Cannabis Control Act, 2017. It allows police, without an order from the court, to close any premises and remove any person from that property if they charge anybody with unlawfully selling cannabis (contrary to section 6). Or IF the landlord is allowing an unlicensed tenant to sell cannabis on the premises (contrary to section 13).

The police also have this power if they have reasonable grounds to believe that:

Marihuana has been sold to young persons.

Sold to an organization.

Cannabis is being possessed at that property to sell without the required licence.

The police can continue to keep off the property until a court has disposed of the drug charges, which in Toronto could take up to 2-years. Or the property owner, or a person with interest in the property, applies to the Superior Court of Justice for an order lifting the closure. This order will be granted if the applicant posts a cash bond for $10,000 which can be forfeited if the court ultimately rules against them disposing of the outstanding charges.

The reverse nature of this section of the Cannabis Control Act is rare under Canadian law. It gives the police the authority to essentially close and control a property without first obtaining a court order. And then allows the owners to “bail” out the property while the charges are before the court.

Proving Nature of the Substance

Under section 25.1 of the Cannabis Control Act, 2017, a judge may infer that the substance in question is cannabis from the fact that a witness, such as police officer, testifies that it is.

Under this act, the Crown will no longer be required to test the substance to ensure that it is cannabis. This may seem as the government is taking a common-sense approach to identifying cannabis, but without the independent third-party analysis, it will allow a police officer to identify any green leafy substance without the need to verify it as marijuana. This is certainly a lower standard than now exists.

Judicial Independence and the Standard of Proof

Another concerning change is that the government, under section 28(c) Cannabis Control Act, 2017, is able to make regulations directing judges on how to interpret evidence.

This section states that the Lieutenant Governor in Council is authorized to make regulations providing for how elements of an offence may be proven. Including providing for presumptions that apply or inferences that may be made from aspects of evidence. It eliminates a judge’s independence and takes decision-making abilities away from them.